Teacher misconduct

A High Court judge has overturned an indefinite teaching ban on a ‘superhead’ who channeled work to a company with which he was associated. James Goudie QC looks at the reasons why.

The General Teaching Council for England was abolished by Section 7 of the Education Act 2011 (“the 2011 Act”). Section 8 of that Act enacted a new statutory code for dealing with misconduct by teachers in England.  It did so by inserting Sections 141A to 141E and Schedule 11A into the Education Act 2002 (“the 2002 Act”). The new scheme came into force on 1 April 2012.

Section 141B relates to investigation of disciplinary cases by the Secretary of State (“the SoS”). Paragraph 1 of Schedule 11A requires the SoS to make Regulations in accordance with the provisions of that Schedule. The relevant Regulations are the Teachers’ Disciplinary (England) Regulations 2012, SI 2012/560 (“the 2012 Regulations”).

Paragraph 2 of Schedule 11A requires the Regulations to make provision about the procedure to be followed by the SoS in reaching a decision under Section 141B(2). Under paragraph 4(2) the Regulations may deal with the time at which a Prohibition Order is to take effect, allowing a person to apply to the SoS to set aside a Prohibition Order made against him, the minimum period for which an Order must be in effect before any such application may be made, and the procedure for making that application.

Under Regulation 6, where the SoS considers that a case should be considered by a Professional Conduct Panel (“PCP”), she must appoint a PCP comprising at least three persons and including at least one or more teachers (or persons who have been teachers in the previous 5 years) and one or more other persons. Regulation 7 provides for the role of a PCP. A PCP may not determine a case without a hearing, unless the teacher concerned makes a written request that no hearing be held. Regulation 9 entitles a teacher to appear at a hearing, to make oral representations and to be represented by any person. The general principle is that hearings must be held in public, save in specified circumstances.

Regulation 8 sets out the decision-making functions of the SoS.

Regulation 16 lays down the procedure to be followed where a teacher makes an application to set aside a Prohibition Order in accordance with its terms. Under Regulation 16(4) the SoS must decide whether the application should be allowed, or instead referred to a PCP to consider whether to recommend that the application be allowed. In the latter case the SoS must consider any recommendation made by the PCP before deciding whether to set aside the Prohibition Order. Where the SoS refuses an application to set aside, she must specify the period (being not less than a year) which must elapse before any further Regulation 16 application may be made.

In Wallace v SoS (2017) EWHC 109 (Admin) Holgate J examined the two-tier statutory scheme for dealing with misconduct by teachers. It was for the PCP to determine whether the allegations were proved and, if so, to recommend a sanction, and for the SoS to take the ultimate sanction decision. The latter was not bound by the PCP’s recommendation. In the instant case the SoS had erred in imposing a Prohibition Order against a “super head” with exceptional teaching abilities because she had failed to consider proportionality and the public interest for him to continue teaching.

The statutory scheme splits the decision-making between two tiers. The first tier, the PCP, is responsible for deciding whether or not relevant allegations against a teacher are proved. If they conclude that they are not, that is the end of the case. The SoS has no power to review findings by a PCP that there was no unacceptable professional conduct, or no conduct bringing the profession into disrepute, or no relevant conviction. The SoS has no power to substitute different findings or conclusions on those matters. Likewise, where a PCP concludes that there was misconduct within the ambit of Section 141B(1), the SoS is not entitled to take a different view. The SoS has no power to interfere with any of the findings made by a PCP in reaching their conclusions as to the extent to which an allegation of misconduct within Section 141B(1) is, or is not, made out.

The second stage of the decision-making process arises only if the PCP decides that one or more allegations of misconduct falling within Section 141B(1) of the 2002 Act is made out. At that point the PCP has to consider whether or not to recommend that a Prohibition Order is made and, if so, whether a provision for review should be included (and on what terms). Regulation 8(1) obliges the SoS to consider the PCP’s recommendations on the “prohibition order issue”, or the “sanction issue”, but it is plain from the legislation that the decision on this subject is for the SoS alone. She is not bound to follow the recommendations made by the PCP. So the SoS is entitled to accept or reject a recommendation that a Prohibition Order either is made, or is not made.

Because in this second stage, the legislation ascribes different functions to the PCP (of recommending) and to the SoS (of determining), there is nothing in the statutory scheme which treats the SoS as bound by any part of the PCP’s reasoning on the “sanctions issue” leading up to its recommendation. So it would appear that the SoS is not restricted simply to deciding how much weight should be given to the conclusions on reasons set out in the PCP’s report on the “sanctions issue”. She may decide to disagree with, for example, factual conclusions drawn by the PCP when dealing with that separate issue. However, that legal freedom may also give rise to an issue in a future case as to whether the SoS needs access to more material from the PCP hearing than the PCP’s report where she is minded to alter a factual conclusion of that kind. But that issue did not arise for decision in this case, because the SoS did not disagree with any factual findings in the “sanctions” part of the PCP’s report. Instead, the SoS simply decided to give different weights to the factors identified in that report.

Accordingly, any issue as to whether the process lacks independence for the purposes of ECHR Article 6(1) was confined to the “sanctions” part of the decision. It had not been suggested that the PCP lacks independence and therefore that issue did not arise in relation to the earlier stage in which the PCP finds facts and reaches conclusions on whether misconduct falling within Section 141B(1) has occurred. That is an independent determination of that part of the case, which cannot be altered on behalf of the SoS.

The seriousness of the misconduct for the purposes of deciding what sanction should be imposed will be influenced largely by the findings of the independent PCP in the first part of their report dealing with whether the allegations of misconduct have been made out, factual findings with which the SoS could not interfere. In most cases the degree of seriousness of the misconduct will be self-evident from those findings. The second part dealing with the “sanctions issue” will largely be concerned with how much weight to give to that misconduct as compared with the personal circumstances of the teacher. In many, if not most, cases it follows that the central issue when considering sanctions will be the weight to be given to the misconduct proved and whether it is so serious as to justify a Prohibition Order.

Moreover, irrespective of whether the ultimate decision-maker is to be regarded as independent, Article 6(1) is satisfied by the existence of the right of appeal under Regulation 17. The existence of the appeal procedure forms an intrinsic part of the overall scheme for dealing with a disciplinary issue and prevents a breach of Article 6(1) from occurring in the first place.

Parliament has chosen to make the SoS responsible for operating a scheme which provides for investigation and proceedings in respect of cases of misconduct. At the end of that process, if a qualifying level of misconduct is established to the satisfaction of the independent PCP, the SoS is responsible for determining the sanction. The PCP’s function in respect of that latter issue is limited to making a non-binding recommendation.

Furthermore, the Judge had not been shown anything on behalf of the Appellant to suggest that in relation to the “appropriate sanction” issue, a PCP has any superior level of expertise as compared with that of the SoS and her officials, such that the scheme should require the latter to defer to the former, let alone be bound by the former. Important considerations include the maintenance of proper professional standards, the integrity of the profession and the confidence of the public in the teaching profession. A PCP typically comprises 3 members drawn from a pool of 90. One of the functions of the SoS as the final decision-maker on sanctions is to provide oversight and consistency on that aspect (whilst taking into account differences between individual cases).

With those considerations in mind, Holgate J saw no justification for a Judge of the High Court to approach an appeal under Regulation 17 with deference towards, or preference for, the views on sanction of a PCP rather than those of the SoS.

Moving to another point, an unusual feature of the disciplinary scheme introduced by the 2011 Act and the 2012 Regulations, is that misconduct falling within Section 141B(1) is established, there are only two sanctions available to the SoS. She may make a Permanent Prohibition Order so as to prevent the teacher from carrying out any “teaching work” (with or without a provision allowing an application to set aside). Alternatively, she may refuse to make such an Order, but in that event she must publish her decision (Regulation 8(5)) which will include details of the findings of misconduct proved. The legislative scheme does not provide for any other sanction between these two alternatives. This scheme is unlike many others which provide for a range of sanctions running from reprimand or admonishment, through the imposition of conditions on practice, or suspension, to removal of the right to practise or work in a profession.

In Holgate J’s judgment there are at least two important consequences of this unusual feature of the scheme for dealing with the misconduct of teachers. First, it is undoubtedly relevant for the decision-maker to take into account and weigh the lesser sanction of a public finding of misconduct. Second, the proper application of a proportionality test may affect the outcome of many cases dealt with under the 2012 Regulations. The proportionality of imposing a Prohibition Order should be addressed. It was apparent that this case was considered to be on the cusp or the threshold for imposing a Prohibition Order. It followed from all these circumstances that the alternative sanction that the adverse findings of misconduct should be published was an “obviously material” consideration which the SoS was explicitly required to take into account and weigh. The fact that this case was to be regarded as a finely balanced, or threshold, case for the purposes of deciding whether a Prohibition Order should be imposed was also relevant to the contention that the SoS failed to apply the correct test for proportionality. The criticism began with the principle that because professional disciplinary proceedings are concerned primarily with the public interest in maintaining professional standards and the reputation of the profession rather than punishment, personal mitigation generally has a lesser effect or weight than would otherwise be the case. However, the public interest in retaining a person who is able to make a valuable contribution to a profession, can be a factor carrying substantial weight against prohibiting him or her from working in that profession. Holgate J concluded that the SoS did not make a proper proportionality assessment, in accordance with Bank Mellat v HM Treasury (No 2) (2014) AC 700 at paragraphs 20 and 74-75.  The relevant objectives, or public interests, in the present case included not only the maintenance of proper standards and public confidence in the teaching profession, but also enabling the Appellant’s exceptional contribution to education in relation to schools, pupils, the profession and its work to be retained. The proportionality assessment also needed to deal with the availability of only two different sanctions in the context of this case, namely the PCP’s findings that the misconduct was at the lower end of the scale of severity for the imposition of a Prohibition Order. The necessity for such an Order, as compared with the effect of a formal publication of the adverse findings, was not assessed, bearing in mind also that the public interest considerations in this case pointed both in favour of and against the imposition of a Prohibition Order and that it was expected that a Prohibition Order could be of a relatively short duration in any event. Issues regarding public concern about misconduct and public confidence in the profession should have been assessed by reference to the standard of the “ordinary intelligent citizen”, in other words a citizen who appreciates the seriousness of the alternative sanction of “publication of adverse findings”, as well as the other issues involved in the case.

James Goudie QC is a barrister at 11KBW. This article first appeared on the set's Education Law Blog.